Cabinet ministers have had to resign in the past over interference in the judiciary; one case involving the government of Pierre Trudeau sparked a national uproar.

One of the precedents involved former Quebec premier Jean Charest. In 1991, when he was sports minister in the Mulroney government, Charest was forced to resign after telephoning a Quebec Superior Court judge on a pending judgement about a track coach appealing his exclusion from the Commonwealth games.

Trudeau’s Labour Minister John Munro had to resign for calling an Ontario judge in 1978 to offer a character reference for a constituent facing sentencing on an assault conviction.

In 1976, the Trudeau government faced what the opposition alleged was a major scandal over the so-called “judges affair”. Cabinet ministers Jean Chretien and C.M. Drury, and former minister Andre Ouellet, were accused of communicating with judges on cases before them.

Chretien feared his career was ruined after it was revealed that he telephoned a judge to find out when a decision would be coming down on a matter involving a constituent in his riding whose company faced bankruptcy proceedings. Quebec Superior Court judge Kenneth MacKay accused Chretien as well as the two other ministers of trying to interfere in the judicial process. He termed the interference “appalling.”

Chretien fought back, getting the judge he had called to issue a statement saying that while the call, made while he was Indian Affairs minister, should not have happened, it did not amount to interference.

Chretien talked of possible legal action against The Globe and Mail. While on the phone, a Globe editor asked him, “Is that a threat?” “No,” responded Chretien, “it’s a promise.”

In the wake of it all, Trudeau ordered his ministers to never communicate with judges.

In going after Supreme Court Chief Justice Beverley McLachlin, Harper may have had some of these precedents in mind. “If people,” he said “thought the prime minister or ministers of the government were contacting judges on cases before them … I think the entire Opposition, entire media and entire legal community would be outraged.”

McLachlin, however, said she only wished to inform the government as to the eligibility of Supreme Court candidate Marc Nadon. She was not, she said, intent on expressing an opinion on the merits of the eligibility issue. Furthermore, she said it is customary for chief justices to be consulted during the appointment process and there is nothing inappropriate about it.

Harper said it was a very sensitive matter, pointing out that he disagreed with the ultimate ruling by the Court rejecting the nomination of Nadon. But “I allowed the Supreme Court to make its own decision.”

10 comments on “Harper’s case against McLachlin: the precedents”

Wow. Can’t believe how wrong someone could be – starting with the spelling of the Chief Justice’s name! None of the precedents are relevant – they all involve politicians contacting judges about cases. They do not involve discussions between the Chief Justice and the Prime Minister or Minister of Justice about the court which go back to the founding of the Court in 1875. I would have liked to see Mr. Martin speak with former Prime Ministers Mulroney, Chretien, Martin & Joe Clark and ask them. Now that would be something worth reading!

Mr Martin, your article is seriously fact challenged. The Chief Justice DID NOT communicate with the Prime Minister or any Minister, about any case. She communicate with a Parliamentary Committee when asked for advice and tried to alert the Prime Minister of the fact that he was trying to alert the Prime Minister of the fact that never before had a judge from the Federal Court been appointed as a Supreme Court Justice for Quebec. You need to issue a retraction of the import of this article. The factual error is unbecoming a journalist of your stature.

What does he mean ‘allowed?’ the PM of this country does not ‘allow’ the courts. He is out of control. I have the reoccurring bad dream where he just doesn’t call an election. And when it goes to court he has control of the court, which approves any laws he wants, and we never have an election again. It happened in the 1930s in Europe and we all know the upshot of that.

Am I the only one who is not aware that there had been any accusation that Harper had acted inappropriately in regard to trying to influence the decision of the SCC? In fact, it was the other way around: Harper/ PMO/ anonymous Cons MPs or causcus that had accused McLachlin of inappropriate behaviour. So what the heck is Martin rambling on about Harper having this in mind?

Sorry Mr. Martin, while I often enjoy reading your comments, you’ve got real problems with this one. First, as others have pointed out, the “precedents” you offer to support Mr. Harper’s “case against McLachlin”, aren’t precedents at all.

More importantly, if the government (Harper?) believed there was any “case against McLachlin”, it had to put it forward in the Nadon reference, where it could have been considered and adjudicated. That it wasn’t raised then (to my knowledge) suggests to me that the “case” didn’t exist. Even if it did though, it cannot be raised now.

It’s nice that Harper “allowed” the SCC to make its own decision. Really? Having kept silent about something he suggests may have affected the outcome, Harper now seeks to undermine that decision, and the Supreme Court itself. Whatever “case” Harper now claims, he’s attempting to try it after the fact, in the court of public opinion. Your column claiming to offer “precedents” for “the case”, only gives support to Harper’s unprecedented attack.